The burden of showing that a privilege applies in any given situation rests entirely upon the entity asserting the privilege. Calbom v. Knudtzon, 65 Wn.2d 157, 396 P.2d 148 (1964).
In its present form, § 409 reads:
Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.
Federal courts during this period tended to embrace a more expansive understanding of § 409.
In Robertsonv. Union Pacific Railroad, 954 F.2d 1433 (8th Cir. 1992), the Eighth Circuit held that § 409 "provides a fairly broad exclusion." Id. at 1435.
The court deemed "without merit" the plaintiff's claim that materials were not privileged if "not collected or utilized solely for federal funding projects." Id. at 1435 n.3.
Rather, the court held that § 409 covered all materials compiled "pursuant to Sections 130, 144, and 152" even if "available for other uses and purposes." Id. at 1435 & n.3.
The Eighth Circuit reiterated its broad construction of § 409 in Lusby v. Union Pac. R.R., 4 F.3d 639 (8th Cir. 1993), where it reversed a trial court that had allowed testimony by an expert who relied on state-held materials such as accident reports, explaining that "state materials do not fall outside the scope of § 409 merely because they are not compiled solely for federal reporting purposes and are available for other uses." Id. at 641.
The Lusby court held that as long as one of the reasons for compiling accident reports or other data was for "federal reporting purposes," they were privileged under § 409. See also Taylor v. St. Louis S.W. Ry., 746 F. Supp. 50, 53-54 (D. Kan. 1990); Harrison v. Burlington N. R.R., 965 F.2d 155 (7th Cir. 1992).